No. 03-5554
================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------LARRY D. HIIBEL,
Petitioner,
v.
SIXTH JUDICIAL DISTRICT COURT OF NEVADA,
HUMBOLDT COUNTY, et al.,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari
To The Supreme Court Of Nevada
---------------------------------♦--------------------------------BRIEF OF THE CATO INSTITUTE AS
AMICUS CURIAE IN SUPPORT OF PETITIONER
---------------------------------♦--------------------------------TIMOTHY LYNCH*
CATO INSTITUTE
1000 Massachusetts Ave., NW
Washington, DC 20001
(202) 842-0200
M. CHRISTINE KLEIN
HUNTON & WILLIAMS LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, VA 23219
(804) 788-8755
*Counsel of Record
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...........................................
ii
INTEREST OF AMICUS CURIAE ...............................
1
STATEMENT OF THE CASE .......................................
1
SUMMARY OF ARGUMENT ........................................
3
ARGUMENT...................................................................
4
I.
IF GOVERNMENT AGENTS HAVE THE
POWER TO ACTIVELY SEEK CONSENSUAL
STOPS AND SEARCHES, THEN CITIZENS
CANNOT BE ARRESTED FOR DECLINING
SUCH INVITATIONS OR OTHERWISE ENGAGING IN PEACEFUL NONCOOPERATION....................................................................
4
IF GOVERNMENT AGENTS HAVE THE
POWER TO ACTIVELY SEEK CONSENSUAL
CONVERSATIONS WITH CITIZENS IN ORDER TO SECURE ADMISSIONS AND CONFESSIONS, THEN CITIZENS CANNOT BE
ARRESTED FOR DECLINING SUCH INVITATIONS OR OTHERWISE ENGAGING IN
PEACEFUL NONCOOPERATION ...................
7
IT IS PERVERSE TO REASON THAT THE
CONSTITUTIONAL RIGHTS OF THE CITIZENRY DISSIPATE ALONG WITH THE QUANTUM OF INCRIMINATING EVIDENCE IN THE
POSSESSION OF THE GOVERNMENT.............
11
THE RIGHT TO REMAIN SILENT IS A SIMPLE, JUST, CONSTITUTIONAL RULE. ANY
OTHER RULE WILL COMPLICATE THE LAW
AND SPAWN MORE LITIGATION .....................
13
CONCLUSION ...............................................................
18
II.
III.
IV.
ii
TABLE OF AUTHORITIES
Page
CASES
Berkemer v. McCarty, 468 U.S. 420 (1984) ..................11, 16
Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971) ........................................................ 10
Boy Scouts of America v. Dale, 530 U.S. 640 (2000) ........... 7
Brogan v. United States, 522 U.S. 398 (1998)....................11
Chavez v. Martinez, 123 S. Ct. 1994 (2003) ...................... 10
Coolidge v. New Hampshire, 403 U.S. 443 (1971) ............ 17
County of Riverside v. McLaughlin, 500 U.S. 44
(1991) ................................................................................ 7
Dickerson v. United States, 530 U.S. 428 (2000)................11
District of Columbia v. Little, 178 F.2d 13 (D.C. Cir.
1949)............................................................................ 4, 12
East Brunswick v. Malfitano, 260 A.2d 862 (N.J.
Super. Ct. App. Div. 1970) .............................................. 14
Enright v. Groves, 560 P.2d 851 (Colo. App. 1977).............. 9
Florida v. Bostick, 501 U.S. 429 (1991) ............................. 13
Grant v. State, 461 A.2d 524 (Md. Ct. Spec. App.
1983).................................................................................. 8
Graves v. City of Coeur D’Alene, 339 F.3d 828 (9th
Cir. 2003)......................................................................... 15
Henes v. Morrissey, 533 N.W.2d 802 (Wis. 1995) .............. 15
Hiibel v. Sixth Judicial District Court, 59 P.3d 1201
(Nev. 2002) ........................................................................ 2
Illinois v. Perkins, 496 U.S. 292 (1990) ............................... 9
In re Stumbo, 582 S.E.2d 255 (N.C. 2003) .......................... 6
iii
TABLE OF AUTHORITIES – Continued
Page
King v. State, 149 So.2d 482 (Miss. 1963) ....................... 5, 6
Kolender v. Lawson, 461 U.S. 352 (1983).......................... 14
Malloy v. Hogan, 378 U.S. 1 (1964) ..................................... 8
Michigan v. DeFillippo, 443 U.S. 31 (1979) ................ 10, 17
Miller v. United States, 230 F.2d 486 (5th Cir. 1956) ......... 5
Miranda v. Arizona, 384 U.S. 436 (1966).....................10, 11
Mitchell v. United States, 526 U.S. 314 (1999) ................. 12
Ohio v. Robinette, 519 U.S. 33 (1996).................................. 8
People v. Tinston, 163 N.Y.S.2d 554 (N.Y. Mag. Ct.
1957).................................................................................. 5
Scott v. Maryland, 782 A.2d 862 (Md. 2001) ....................... 7
See v. City of Seattle, 387 U.S. 541 (1967)........................... 5
State v. Barnes, 572 S.E.2d 165 (N.C. Ct. App.
2002)................................................................................ 10
State v. Bradshaw, 541 P.2d 800 (Utah 1975) .................. 14
State v. Espinoza, 641 N.W.2d 484 (Wis. Ct. App.
2002).................................................................................. 9
State v. Hamilton, 356 N.W.2d 169 (Wis. 1984).................. 9
State v. Hauan, 361 N.W.2d 336 (Iowa Ct. App.
1984).................................................................................. 9
State v. Hobson, 577 N.W.2d 825 (Wis. 1998) ................... 14
State v. Srnsky, 582 S.E.2d 859 (W. Va. 2003) .................. 13
Strange v. City of Tuscaloosa, 652 So.2d 775 (Ala.
Crim. App. 1994)............................................................... 6
Terry v. Ohio, 392 U.S. 1 (1968)........... 7, 8, 9, 10, 13, 15, 16
United States v. Di Re, 332 U.S. 581 (1948)........................ 9
iv
TABLE OF AUTHORITIES – Continued
Page
United States v. Drayton, 536 U.S. 194 (2002) ............... 7, 9
United States v. McGauley, 786 F.2d 888 (8th Cir.
1986)................................................................................ 10
Watts v. Indiana, 338 U.S. 49 (1949)................................. 16
STATUTES
Ga. Code Ann. § 16-10-20................................................... 10
Mass. Gen. Laws, ch. 41, § 98............................................ 16
Md. Code Ann., Crim. Law § 9-503.................................... 10
NRS § 171.123(3).................................................................. 2
NRS § 199.280 ...................................................................... 2
Vt. Stat. Ann. tit. 24, § 1983 .............................................. 16
18 U.S.C.A. § 1001.............................................................. 10
SCHOLARSHIP AND OTHER SOURCES
Joel Berger, “The Police Misconduct We Never See,”
New York Times, February 9, 1999................................ 10
Timothy Lynch, “We Own the Night:” Amadou
Diallo’s Deadly Encounter with New York City’s
Street Crimes Unit,” Cato Institute Briefing Paper, No. 56 (March 31, 2000).......................................... 14
“NYPD Hit on Stop and Frisk Report,” Daily News
(New York), December 1, 1999....................................... 15
1
INTEREST OF AMICUS CURIAE
1
The Cato Institute was established in 1977 as a nonpartisan public policy research foundation dedicated to
advancing the principles of individual liberty, free markets, and limited government. Cato’s Center for Constitutional Studies was established in 1989 to help restore
limited constitutional government and secure those
constitutional rights, both enumerated and unenumerated, that are the foundation of individual liberty. Toward
those ends, the Center publishes books and studies,
conducts conferences and forums, publishes the annual
Cato Supreme Court Review, and files amicus curiae briefs
with the courts. Because the instant case raises vital
questions about the power of government to stop individuals who do not wish to be stopped and to demand answers
from individuals who do not wish to speak, the case is of
central concern to Cato and the Center.
---------------------------------♦--------------------------------STATEMENT OF THE CASE
2
On the evening of May 21, 2000, a bystander called
the Humboldt County Sheriff ’s Office in Winnemucca,
Nevada to report that the driver of a pick-up truck was
1
The parties’ consent to the filing of this amicus brief has been
lodged with the Clerk of this Court. In accordance with rule 37.6,
amicus states that no counsel for either party has authored this brief in
whole or in part, and no person or entity, other than the amicus, has
made a monetary contribution to the preparation of this brief.
2
This statement of facts is based upon Patrol Deputy Lee Dove’s
trial testimony given February 13, 2001, in the Justices’ Court of Union
Township, Nevada.
2
hitting his female passenger. When Patrol Deputy Lee Dove
responded, the reporting party directed him to a truck parked
on the side of Grass Valley Road. Larry Hiibel was standing
outside the truck. Deputy Dove asked Mr. Hiibel several times
to identify himself, but Mr. Hiibel chose to remain silent.
Because Mr. Hiibel refused to “cooperate” by identifying
himself, Deputy Dove placed him in handcuffs and transported him to jail. Deputy Dove testified that because Mr.
Hiibel had “potentially” committed a crime, he was legally
required to identify himself pursuant to NRS § 171.123(3).
Because Mr. Hiibel remained silent instead, he was charged
with, and ultimately convicted of, delaying an officer under
NRS § 199.280. Specifically, the trial court held that “Deputy
Dove acted properly and lawfully when he asked [Mr. Hiibel]
for identification and subsequently arrested him for refus3
ing. . . . ” Mr. Hiibel was never tried on any other charge.
The Supreme Court of Nevada, in a 4-3 opinion, held
that it is constitutional to arrest a person for exercising
his right to remain silent by refusing to identify himself.
Hiibel v. Sixth Judicial District Court, 59 P.3d 1201 (Nev.
2002). The three dissenting justices observed that “being
forced to identify oneself to a police officer or else face arrest is
government coercion – precisely the type of governmental
intrusion that the Fourth Amendment was designed to
prevent.” Id. at 1209 (Agosti, J., with whom Shearing and
Rose, JJ., join, dissenting).
---------------------------------♦--------------------------------3
Nevada dismissed a domestic battery charge against Mr. Hiibel.
See Hiibel v. Sixth Judicial District Court, 59 P.2d 1201, 1203, n.1 (Nev.
2002). No other charges were ever brought.
3
SUMMARY OF ARGUMENT
On first blush, the arrest of Larry Hiibel appears to be
a petty matter, but this case actually raises profound
questions regarding the power of government and the
constitutional rights of the citizenry.
If citizens have the right to voluntarily engage in
conversations with police officers (and they assuredly do),
they must also retain the option of declining to engage in
such conversations – especially when law enforcement
agents are employing interrogation tactics that are purposely designed to have the citizen waive his right to reject
a consensual stop or search or his right to silence.
If the government can criminalize citizen silence, citizens
will no longer be able to rely upon their own wits when they
find themselves confronted with law enforcement agents.
There would simply be too much legal jeopardy: if selfincrimination, false statements, and simple silence can be
jailable offenses, citizens will become totally dependent upon
members of the legal profession to defend and vindicate their
legal rights. And since attorneys are typically not on the scene
as the events are unfolding, the rights of the citizenry will be
trampled month to month, year to year – as only a few will
seek out an attorney after-the-fact and file a lawsuit. This
Court must recognize that such after-the-fact avenues of legal
relief, at least in the context of citizen-cop street encounters,
are woefully inadequate. This case provides the Court with an
opportunity to declare a clear, simple and just rule of law: an
American citizen cannot lose his liberty for simply declining to
speak with a police officer. Any other rule will dilute the
constitutional rights of all citizens, complicate the law, and
spawn still more litigation.
---------------------------------♦---------------------------------
4
ARGUMENT
I.
IF GOVERNMENT AGENTS HAVE THE
POWER TO ACTIVELY SEEK CONSENSUAL
STOPS AND SEARCHES, THEN CITIZENS
CANNOT BE ARRESTED FOR DECLINING
SUCH INVITATIONS OR OTHERWISE ENGAGING IN PEACEFUL NONCOOPERATION.
History shows that from time to time government
officials become so zealous in their desire to carry out their
responsibilities that they not only come to want the full
cooperation of citizen-suspects and citizen-witnesses, but
they go so far as to demand it. And when such demands
are resisted, there is a tendency for those in authority to
overreact and to misperceive the entire affair as an instance of “obstruction of justice” or “interfering with a
police officer” or “disorderly conduct.” It is the duty of the
judiciary to scrutinize such claims of “criminality” to
determine whether the underlying conduct of the citizen
truly interfered with a government agent in the performance of his duty – or whether the conduct merely displeased the agent.
When Geraldine Little stood on her Fourth Amendment rights and refused to allow a City Health official into
her home without a warrant, she was arrested for “hindering” and “interfering” with an inspector in the performance
of his duty. District of Columbia v. Little, 178 F.2d 13 (D.C.
Cir. 1949), aff ’d 339 U.S. 1 (1950). In reversing her conviction, the court noted that constitutional guarantees can be
invoked not only against “malevolent and arrogant
agents,” but “wise and benign officials” as well. Id. at 17.
The court also observed that it was immaterial whether
the demand for entrance was “motivated by the highest
public purpose or by the lowest personal spite.” Id.
5
When Evelyn Miller stood on her Fourth Amendment
rights and refused to allow a U.S. Marshal into her home
without a search warrant, federal prosecutors charged her
with “obstruction of justice.” Miller v. United States, 230
F.2d 486 (5th Cir. 1956). In reversing her conviction, the
court noted that Miller “asserted a right which was hers,
and which none could take away. That it . . . subjected the
officers to the inconvenience of getting a lawful writ,
neither detracts from this right nor subjects her to a crime
for having asserted it.” Id. at 489-490.
When Albert Tinston refused to identify himself to
plainclothes officers who accosted him on the street, he
was arrested for “disorderly conduct.” People v. Tinston,
163 N.Y.S.2d 554 (N.Y. Mag. Ct. 1957). In reversing his
conviction, the court noted that Mr. Tinston “could hardly
have employed a milder form of resistance to ‘prevent an
offense against his person.’ ” Id. at 559.
When Samuel King stood on his Fourth Amendment
rights and told two deputy sheriffs to leave his property,
he was arrested for “obstructing justice.” King v. State, 149
So.2d 482 (Miss. 1963). In reversing his conviction, the
court noted that since there was nothing in the record to
justify the invasion of King’s property, he was within his
rights in treating the police officers as “trespassers.” Id. at
483.
When Norman See stood on his Fourth Amendment
rights and refused to allow city officials to search his
warehouse without a warrant, he was prosecuted and
fined. See v. City of Seattle, 387 U.S. 541 (1967). In reversing his conviction, this Court wrote that Mr. See could not
“be prosecuted for exercising his constitutional right.” Id.
at 546.
6
When Delores Strange stood on her Fourth Amendment rights and refused to allow police officers to search
the bedrooms of her home, she was arrested for “interfering” with the police. Strange v. City of Tuscaloosa, 652
So.2d 773 (Ala. Crim. App. 1994). In reversing her conviction, the court noted that the warrantless entry into the
home violated her constitutional rights. Thus, “her actions
to prohibit the entry and search cannot subject her to a
criminal conviction for interfering with police officers.” Id.
at 776.
When Mary Ann and James Stumbo stood upon their
Fourth Amendment rights and refused to allow a social
worker into their home to interrogate their children, a
court order (carrying criminal penalties) was issued. In re
Stumbo, 582 S.E.2d 255 (N.C. 2003). That order instructed
the Stumbos to not “obstruct” or “interfere” with the
investigation. On appeal, the Supreme Court of North
Carolina determined that it was the social worker’s
demands, not the conduct of the Stumbos, that were
unlawful. Id.
Geraldine Little, Evelyn Miller, Albert Tinston,
Samuel King, Norman See, Delores Strange, and MaryAnn and James Stumbo could have acquiesced to the
authorities with whom they were confronted, but instead
they resisted by standing upon their constitutional rights.
Initially, the government perceived the invocation of their
rights as criminal behavior – it was only later that those
rights were vindicated by the courts. In this case, Deputy
Dove did his best to elicit a “voluntary” statement from
Mr. Hiibel. For better or worse, that plan failed when Mr.
7
Hiibel exercised his right to remain silent and his “right
not to cooperate.” United States v. Drayton, 536 U.S. 194,
4
197 (2002). By criminalizing citizen silence in these
circumstances, Nevada has unconstitutionally burdened
the right of citizens to withhold consent from agents who
are aggressively seeking to secure citizen consent in order
5
to justify stops and searches.
II.
IF GOVERNMENT AGENTS HAVE THE POWER
TO ACTIVELY SEEK CONSENSUAL CONVERSATIONS WITH CITIZENS IN ORDER TO SECURE ADMISSIONS AND CONFESSIONS, THEN
CITIZENS CANNOT BE ARRESTED FOR DECLINING SUCH INVITATIONS OR OTHERWISE
ENGAGING IN PEACEFUL NONCOOPERATION.
In Terry v. Ohio, 392 U.S. 1 (1968), Justice White was
undoubtedly correct when he observed that
4
In recent years police agencies have been employing a new tactic
that has come to be called “Knock and Talk.” See, e.g., Scott v. Maryland, 782 A.2d 862 (Md. 2001). The basic idea is to knock on the door of
people’s homes, engage them in conversation, and to try mightily to
obtain consent for searches of those homes. This tactic is consistent
with the constitutional rights of the citizenry – so long as this Court
makes it plain that homeowners cannot face “obstruction of justice”
charges for remaining silent or for peacefully closing their doors to
uninvited government agents.
5
Note that the claim that there is no “constitutional right to
anonymity” only serves to obfuscate the issues at stake in this case.
This claim is akin to arguing that the Constitution does not mention a
“right to decline association with unwanted persons” (but see Boy Scouts
of America v. Dale, 530 U.S. 640, 648-649 (2000) (“Government actions
that may unconstitutionally burden [the freedom of association] may
take many forms”)) or a judicial hearing within forty-eight hours of an
arrest (but see County of Riverside v. McLaughlin, 500 U.S. 44 (1991)).
8
“There is nothing in the Constitution which prevents a policeman from addressing questions to
anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and
go on his way.”
Id. at 34 (White, J., concurring). It is also undoubtedly
true that the police can exploit any inculpatory utterance
elicited from a citizen as a legal justification to augment
his authority, such as by (a) detaining the citizen against
his will; (b) frisking the citizen’s clothes; or (c) conducting
a full blown custodial arrest. See, e.g., Grant v. State, 461
A.2d 524 (Md. Ct. Spec. App. 1983). After all, if a police
officer is walking the beat and asks a passerby if he has
6
any “guns or drugs on his person,” and the citizen replies
“Well, I do have some cocaine right here in my coat,” such
an admission would furnish the police with a sufficient
legal basis to search that coat and, if the cocaine is indeed
found, to arrest that person. In other situations, the police
may be able to secure admissions, such as a citizen’s
whereabouts at a critical time, and so forth. Under the
law, then, the police can ask questions and citizens can
certainly elect to answer those questions. This case raises
the question as to whether a citizen can elect to resist
entreaties by the police by remaining silent or otherwise
engaging in peaceful noncooperation. See Malloy v. Hogan,
378 U.S. 1, 8 (1964) (“The Fourteenth Amendment secures
against state invasion . . . the right of a person to remain
silent unless he chooses to speak in the unfettered exercise
6
Cf. Ohio v. Robinette, 519 U.S. 33 (1996) (police officer poses
similar question to citizen).
9
of his own will, and to suffer no penalty . . . for such
silence.”)
History has shown that the government has attempted to establish precedents that will unconstitutionally burden the right of the citizen to choose silence in the
face of questions posed by agents. For example, in United
States v. Di Re, 332 U.S. 581, 594-95 (1948), prosecutors
maintained that the police could infer probable cause of
criminality from the fact that a citizen did not angrily
protest his arrest and “did not at once assert his innocence.” In State v. Espinoza, 641 N.W.2d 484 (Wis. Ct. App.
2002), prosecutors maintained that the police could prosecute a citizen for “obstruction of justice” because the
citizen asserted his innocence and affirmatively denied his
involvement in criminal activity. Overzealous prosecutors
may believe that confessions are the only appropriate
response to police questioning, but that is not the only
7
prerogative under the American Constitution.
Before this Court analyzes the constitutional issue in
this case, it would be useful to begin with a restatement of
certain propositions that are not in dispute. First, this
Court has determined that the police can actively question
citizens during “voluntary encounters” and “Terry stops.”
(See Drayton; Terry v. Ohio, 392 U.S. 1 (1968)). Second, the
law also allows police officers to use various forms of
trickery and deception to elicit statements from citizens
who fall under suspicion. (See, e.g., Illinois v. Perkins, 496
7
See generally State v. Hamilton, 356 N.W.2d 169 (Wis. 1984);
State v. Hauan, 361 N.W.2d 336, 340-41 (Iowa Ct. App. 1984); Enright v.
Groves, 560 P.2d 851 (Colo. Ct. App. 1977).
10
U.S. 292, 297-98 (1990); State v. Barnes, 572 S.E.2d 165
(N.C. Ct. App. 2002)). Third, an inculpatory statement or
admission can be used against the person who makes it,
and a false statement can lead to legal jeopardy, as well.
(See, e.g., 18 U.S.C.A. § 1001; Ga. Code Ann. § 16-10-20;
Md. Code Ann., Crim. Law § 9-503). Fourth, Miranda
warnings are not required during Terry stops. (See, e.g.,
United States v. McGauley, 786 F.2d 888, 890 (8th Cir.
1986)). Fifth, citizens have no constitutional right to know
the identity of the government agents with whom they are
confronted. (Cf. Bivens v. Six Unknown Federal Narcotics
8
Agents, 403 U.S. 388 (1971)). Be that as it may, but now
the State of Nevada has created legal jeopardy for citizens
who simply elect to maintain silence. The constitutional
problem here is very similar to the one that this Court
noted in Chavez v. Martinez, 123 S. Ct. 1994, 2003-04
(2003), namely, “that if the privilege cannot be asserted in
these situations, any statements [will] be deemed ‘voluntary.’ ” Thus, the criminalization of the right to silence in
these circumstances constitutes an unconstitutional
9
burden upon the right against self-incrimination.
8
When unidentified government agents act lawlessly, such as
when a plainclothes officer conducts an illegal Terry stop, the citizen is
obviously at a distinct disadvantage in obtaining any legal remedy. It is
even worse when government agents misrepresent their identity. See,
e.g., Joel Berger, “The Police Misconduct We Never See,” New York
Times, February 9, 1999.
9
Note also how the Nevada statute works in combination with the
legal doctrine of search incident to arrest. The Nevada statute presents
citizens with the Hobson’s choice of “choos[ing] between forgoing their
right to remain silent and forgoing their right not to be searched if they
choose to remain silent.” Michigan v. DeFillippo, 443 U.S. 31, 46 (1979)
(Brennan, J., with whom Marshall and Stevens, JJ., join dissenting).
11
It should be noted that when a petitioner advanced an
argument in this Court just a few years ago that persons
who are under investigation might be unaware of their
right to remain silent, this Court declared such a notion to
be “implausible.” Brogan v. United States, 522 U.S. 398,
405 (1998). In the circumstances of this case, the citizen
was aware of his right to remain silent, but when he
invoked it, the police placed him under arrest and took
him to jail. Quite obviously, “the right to remain silent” is
under a cloud, to say the least, in some jurisdictions.
III. IT IS PERVERSE TO REASON THAT THE
CONSTITUTIONAL RIGHTS OF THE CITIZENRY MUST DISSIPATE ALONG WITH THE
QUANTUM OF INCRIMINATING EVIDENCE
IN THE POSSESSION OF THE GOVERNMENT.
The Nevada law under which Mr. Hiibel was prosecuted imposes a duty upon persons who are “stopped
under reasonable suspicion by a police officer.” When that
legal duty is examined in the broader context of this
Court’s case law, it becomes apparent that its enforcement
will only produce absurd results.
Consider that even if police detectives are able to
convince a judicial officer to issue an arrest warrant
because the police have done excellent investigative work
and have probable cause to believe that a certain citizen
has committed an offense, that citizen, upon his arrest, not
only has the right to ignore questions posed by the arresting detectives and to remain silent, the police have an
affirmative obligation to warn the arrestee of his right to
remain silent. See Miranda v. Arizona, 384 U.S. 436
(1966); Berkemer v. McCarty, 468 U.S. 420 (1984);
Dickerson v. United States, 530 U.S. 428 (2000).
12
Consider that even after the police and prosecutors
are able to convince an impartial jury to convict a citizen
of a criminal offense by presenting overwhelming evidence
of guilt, that citizen-defendant still retains the right to
remain silent during the sentencing phase of the criminal
case. See Mitchell v. United States, 526 U.S. 314 (1999).
But now consider that in Nevada citizens are stripped
of the right to remain silent when the government has a
much lower quantum of incriminating evidence in its
possession, that is, reasonable suspicion alone. Because of
the limited coverage of the Nevada statute, citizens who do
not fall under the reasonable suspicion of a police officer
can still decline to identify themselves to police detectives
without any threat of arrest and jail time. Are Nevada
officials prepared to argue that that circumstance is
simply a matter of legislative forbearance? Are Nevada
officials prepared to argue that the legislature can revise
the law so that the police can demand answers from any
10
person who is not under arrest? To paraphrase Judge
Prettyman, To say that a citizen who is suspected of a
crime has a right to remain silent, but that a citizen who is
not suspected of a crime has no such right is a fantastic
absurdity. See District of Columbia v. Little, 178 F.2d 13,
17 (D.C. Cir. 1949) (opinion of Prettyman).
The Supreme Court of West Virginia recently identified a related fallacy with respect to the First Amendment
10
Nevada seems to suggest this in its brief to the Sixth Judicial
Court below, contending that Mr. Hiibel’s Fifth Amendment right “only
applies once an individual is placed into custody.” Respondent’s
Answering Brief in the Sixth Judicial District Court of the State of
Nevada in and for the County of Humboldt, May 9, 2001, at 2.
13
issues that are lurking in the background of these
criminalization-of-silence cases. When Brian Srnsky
declined to identify himself to a police officer, he was
arrested and prosecuted for “obstructing a law
enforcement officer.” In reversing his conviction, the court
noted that if citizens have the right to peacefully
remonstrate with an officer while he is performing his
duty, “it stands to reason that silence alone cannot
establish the [obstruction] offense.” State v. Srnsky, 582
S.E.2d 859, 868 (W. Va. 2003) (emphasis in original).
IV.
THE RIGHT TO REMAIN SILENT IS A SIMPLE, JUST, CONSTITUTIONAL RULE. ANY
OTHER RULE WILL COMPLICATE THE LAW
AND SPAWN MORE LITIGATION.
There are at least three additional problems with the
legal claim that is being advanced by Nevada’s prosecuting
authorities. First, there is no indication in the record that
Deputy Dove warned Mr. Hiibel that he was no longer
requesting identification, but that he was demanding
identification. This is a critical point because, under this
Court’s case law, Mr. Hiibel could have reasonably believed
that he was involved in a “voluntary encounter” with a
police officer and could therefore decline to answer questions or even walk away. See Florida v. Bostick, 501 U.S.
429, 437 (1991) (“[N]o seizure occurs when police ask
questions of an individual, ask to examine the individual’s
identification, and request consent to search . . . so long as
the officers do not convey a message that compliance with
their requests is required.”) Absent a formal warning, how
was Mr. Hiibel to know precisely when his exchange with
Deputy Dove ripened into a “Terry stop,” thus triggering
his legal duty under the Nevada statute to identify himself
14
to the police? In Kolender v. Lawson, 461 U.S. 352 (1983),
this Court reaffirmed the proposition that penal statutes
must define the criminal offense with sufficient definiteness that “ordinary people can understand what conduct is
prohibited.” Id. at 357. The Nevada statute does not meet
that standard.
Second, if police officers can arrest people for standing
on their right to silence, the line between a lawful, “black
letter” Terry stop and an illegal detention will mean
virtually nothing to one class of people: innocent people
11
who have done absolutely nothing wrong. If innocent
persons can no longer avoid arrest by remaining peacefully
silent, the only remaining options are to actively resist
and risk both physical retaliation by police officers and
“obstruction of justice” charges (see, e.g., East Brunswick v.
Malfitano, 260 A.2d 862 (N.J. Super. Ct. App. Div. 1970))
or acquiesce on the scene and then seek out an attorney,
12
after-the-fact, to pursue legal redress. How many innocent people who find themselves illegally frisked and
illegally detained for an hour or two will want to file a
13
lawsuit? Even if legal consultation is sought, how many
11
Note that wrongdoers will typically be prosecuted and the
judiciary will still invalidate illegal arrests, suppress statements, and
so forth.
12
See State v. Hobson, 577 N.W. 2d 825, 841 (Wis. 1998) (Abrahamson, C.J., concurring) (noting the inadequate nature of after-the-fact
relief); State v. Bradshaw, 541 P.2d 800, 803-04 (Utah 1975) (Henriod,
C.J., concurring) (damages are “no substitute for loss of freedom”).
13
In the late 1990s, New York City’s Street Crimes Unit conducted
scores of petty, but nonetheless illegal, arrests. See Lynch, “We Own the
Night: Amadou Diallo’s Deadly Encounter with New York City’s Street
Crimes Unit,” Cato Institute Briefing Paper, No. 56 (March 31, 2000).
(Continued on following page)
15
attorneys would advise a client to proceed, given the case
law? See, e.g., Graves v. City of Coeur D’Alene, 339 F.3d
828 (9th Cir. 2003) (detention and search were illegal, but
agents held immune from suit); Henes v. Morrissey, 533
N.W.2d 802 (Wis. 1995) (arrest was illegal, but agents held
immune from suit).
To keep the line between a lawful Terry stop and an
illegal detention from evaporating for innocent and peaceful people who simply wish to stand on their rights under
the law, this Court should not deprive the citizenry of a
simple and traditional maneuver that they might invoke
then and there, on-the-spot, as the critical events are
unfolding – namely, maintaining their silence. Of course,
there is no guarantee that every government agent will
honor the limits of his authority in every situation, but if
this Court makes it clear that citizen silence is something
that the law honors, the number of abuses can certainly be
minimized.
Third, sustaining the constitutionality of the Nevada
statute at issue in this case will complicate the law and
spawn still more litigation. Nevada requires citizens to
identify themselves to police officers and other states have
similar statutory provisions. Vermont, for example, provides that a person who “refuses to identify himself . . .
satisfactorily to a police officer . . . shall forthwith be
brought before a district court judge . . . ” Vt. Stat. Ann.
Tit. 24 § 1983. It is important to note, however, that
numerous states have authorized their police agents to
See also “NYPD Hit on Stop and Frisk Report,” Daily News (New York),
December 1, 1999.
16
demand not just a person’s name, but his address, destination, and/or an explanation of his actions as well. See
Appendix (collecting representative statutes impacting the
right to remain silent). Massachusetts, for example,
provides that persons “who do not give a satisfactory
account of themselves” may be arrested on the spot. Mass.
Gen. Laws, ch. 41, § 98. Since it seems arbitrary to draw a
constitutional distinction between a statute that compels a
person to surrender his identity and a statute that compels a person to surrender both his name and address,
destination, or explanation of his conduct, the lower courts
are likely to split on questions concerning the constitutionally permissible amount of information police officers
can properly compel from citizens during Terry stops.
Finally, this Court should note the cumulative effect
that the patchwork of state, county, and local ordinances
will have upon the right to remain silent. Justice Robert
Jackson once remarked that “Any lawyer worth his salt
will tell suspects in no uncertain terms to make no statement to police under any circumstances.” Watts v. Indiana,
338 U.S. 49, 59 (1949) (Jackson, J., concurring in result in
part and dissenting in part). If the Nevada statute (and
others like it) are sustained, such advice will no longer be
sound.
Indeed, this Court has been properly sympathetic to
the predicament of police agents who are sometimes
expected to apply uncertain legal rules in fast-moving
street situations (See Berkemer v. McCarty, 468 U.S. 420,
431, n.13 (1984) (“Officers in the field frequently have
neither the time nor the competence to determine the
severity of the offense for which they are considering
arresting a person.”) (internal quotation marks and
citations omitted), but this Court also has an obligation to
17
be sensitive to the plight of citizens who wish to stand
upon their rights under the law in unexpected and some14
times heated circumstances. Coolidge v. New Hampshire,
403 U.S. 443, 445 (1971) (“It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon.”) (quotation
and citation omitted). A layperson can comprehend a
ruling that secures a simple right to remain silent. But if
that right is riddled with loopholes (e.g. you have the right
to remain silent in this jurisdiction, but must give your
name to the police in that one, and your name and address
in yet another), citizens will become both docile and
dependent upon members of the legal profession to protect
their rights after-the-fact. And after-the-fact remedies will
undermine the safeguards in the Fourth and Fifth
Amendments, compromise individual liberty, complicate
the law, and spawn still more litigation.
---------------------------------♦---------------------------------
14
Cf. Michigan v. DeFillippo, 443 U.S. 31, 43, n.1 (1979) (Brennan,
J., with whom Marshall and Stevens, JJ., join, dissenting) (“For if it is
unfair to penalize a police officer for actions undertaken pursuant to a
good-faith, though mistaken, interpretation of the Constitution, then
surely it is unfair to penalize respondent for actions undertaken
pursuant to a good-faith and correct interpretation of the Constitution.”).
18
CONCLUSION
For the foregoing reasons, the judgment of the Supreme Court of Nevada should be reversed.
Respectfully submitted,
TIMOTHY LYNCH*
CATO INSTITUTE
1000 Massachusetts Ave., NW
Washington, DC 20001
(202) 842-0200
M. CHRISTINE KLEIN
HUNTON & WILLIAMS LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, VA 23219
(804) 788-8755
*Counsel of Record
1a
APPENDIX
REPRESENTATIVE STATE, TERRITORIAL,
AND LOCAL STATUTES IMPLICATING
THE RIGHT TO REMAIN SILENT
Alabama
Ala. Code § 15-5-30 (providing that a police officer
“may demand” a Terry suspect’s “name, address and an
1
explanation of his actions.”)
Arkansas
Ark. Code Ann. § 5-71-213 (providing that element of
loitering is “refus[al] to identify [one]self and give a
reasonably credible account of [one’s] presence and purpose.”)
California
Cal. Penal Code § 647(e) (providing that element of
disorderly conduct is “refus[al] to identify [one]self . . . and
to account for [one’s] . . . presence when requested by any
2
peace officer so to do. . . . ”)
1
The use of the word “demand” in this and similar statutes should
not be taken lightly. As the police officers argued in Henes v. Morrissey,
533 N.W.2d 802, 807-08 (Wis. 1995), “the word ‘demand’ . . . presumes a
consequence for refusing to produce identification upon their ‘demand’
for it during a lawful investigatory stop. The consequence . . . is arrest
for obstruction under [the obstruction statute].” Although the Wisconsin
court rejected this reasoning, Nevada and other states have not.
2
Although this Court held the California statute unconstitutionally vague in Kolender v. Lawson, 461 U.S. 351 (1983), it has never
been amended or repealed, and was recently cited in People v. Ashton,
2003 WL 22708680 (Cal. Ct. App. Nov 18, 2003).
2a
Delaware
Del. Code Ann., tit. 11, § 1321(6) (providing that
where loitering is suspected, police officer may “request[ ]
identification and an explanation of the person’s presence
and conduct.”)
Del. Code Ann., tit. 11, § 1902 (providing that a police
officer “may demand” a Terry suspect’s “name, address,
business abroad and destination,” and adding that “[a]ny
person so questioned who fails to give identification or
explain [his] actions to the satisfaction of the officer may
be detained and further questioned and investigated” for
up to two hours).
Florida
Fla. Stat. Ann. § 856.021 (providing that where
loitering is suspected, police officer may request the
person “to identify himself . . . and explain his . . . presence
and conduct,” and may take into consideration the person’s
“refus[al] to identify himself” in determining whether
loitering has occurred.)
Fla. Stat. Ann. § 901.151(2) (providing that a police
officer is entitled to ascertain a Terry suspect’s “identity
. . . and the circumstances surrounding [his] presence
abroad. . . . ”)
Georgia
Ga. Code Ann. § 16-11-36 (providing that where
loitering is suspected, police officer may “request[ ] the
person to identify himself and explain his presence and
conduct,” and may take into consideration the person’s
3a
“refus[al] to identify himself” in determining whether
loitering has occurred).
Guam
8 Guam Code Ann. §§ 30.10, 30.20 (providing that a
peace officer may detain a person “under circumstances
which reasonably indicate that such person has committed, is committing or is about to commit a criminal offense” for the purpose of “ascertaining the identity of the
person detained and the circumstances surrounding his
presence abroad. . . . ,” but adding that “such person shall
not be compelled to answer any inquiry of the peace
officer.”)
9 Guam Code Ann. § 61.30 (providing that where
loitering is suspected, police officer may request the
person to “identify himself and explain his presence and
conduct,” and may take into consideration the person’s
“refus[al] to identify himself” in determining whether
loitering has occurred).
Illinois
725 Ill. Comp. Stat. 5/107-14 (providing that a police
officer “may demand” a Terry suspect’s “name and address
. . . and an explanation of his actions.”)
Illinois: Chicago
Chicago, IL, Mun. Code § 2-84-310 (providing that a
police officer “may stop any person in a public place whom
the officer reasonably suspects is committing, has committed or is about to commit a criminal offense under the law
of the State of Illinois or a violation of Chapter 8-20 of this
4a
Code [re: weapons], and may demand the name and
address of such person and an explanation of his actions.”)
Kansas
Kan. Stat. Ann. § 22-2402(1) (providing that a police
officer “may demand” a Terry suspect’s “name, address . . .
and an explanation of such suspect’s actions.”)
Louisiana
La. Code Crim. Proc. Ann. art. 215.1(A) (providing
that a police officer “may demand” a Terry suspect’s “name,
address, and an explanation of his actions.”)
Massachusetts
Mass. Gen. Laws, ch. 41, § 98 (providing that police
officers “may examine all persons abroad whom they have
reason to suspect of unlawful design, and may demand of
them their business abroad and whither they are going,”
and adding that “[p]ersons so suspected who do not give a
satisfactory account of themselves . . . may be arrested by
the police. . . . ”)
Minnesota: St. Paul
St. Paul, MN, Legis. Code § 225.11 (providing that a
“peace officer may stop any person abroad in a public
space whom he has reasonable grounds to believe is
committing, has committed or is about to commit a felony
or any crime or offense involving the use of a weapon of
any kind, and may demand of him his name, address, and
an explanation of his actions.”)
5a
Missouri: Kansas City
Mo. Ann. Stat. § 84.710 (Vernon’s) (in a statute setting
forth the powers to arrest of police officers in Kansas City,
providing that those officers have the “power to . . . demand” a Terry suspect’s “name, address, business abroad
and whither he is going.”)
Montana
Mont. Code Ann. § 46-5-401(2)(a) (providing that a
police officer is entitled to “request” a Terry suspect’s
“name and present address and an explanation of the
person’s actions. . . . ”)
Nebraska
Neb. Rev. Stat. § 29-829 (providing that a police officer
“may demand” a Terry suspect’s “name, address and an
explanation of his actions.”)
New Hampshire
N.H. Rev. Stat. Ann. § 594:2 (providing that a police
officer “may demand” a Terry suspect’s “name, address,
business abroad and where he is going.”)
N.H. Rev. Stat. Ann. § 644:6 (providing that where
loitering is suspected, police officer may request the
person to “identify himself and give an account for his
presence and conduct,” but adding that “[f]ailure to identify or account for oneself, absent other circumstances,
however, shall not be grounds for arrest.”)
6a
New Mexico
N.M. Stat. Ann. § 30-22-3 (providing that it is a misdemeanor to “conceal[ ] one’s true name or identity, or disguis[e]
oneself with intent to obstruct the due execution of the law or
with intent to intimidate, hinder, or interrupt any public
3
officer . . . in a legal performance of his duty. . . . ”)
New York
N.Y. Crim. Proc. Law § 140.50(1) (McKinney’s) (providing that a police officer “may demand” a Terry suspect’s
“name, address and an explanation of his conduct.”)
North Dakota
N.D. Cent. Code § 29-29-21 (providing that a police
officer “may demand” a Terry suspect’s “name, address and
an explanation of his actions.”)
Rhode Island
R.I. Gen. Laws § 12-7-1 (providing that a police officer
“may demand” a Terry suspect’s “name, address, business
abroad, and destination” and adding that “any person who
fails to identify himself . . . and explain his . . . actions
to the satisfaction of the peace officer may be further
3
New Mexico has approved the use of this statute to convict a
person who delays in providing his name to an investigating officer.
State v. Dawson, 983 P.2d 421, 423 (N.M. Ct. App. 1999). The Dawson
court held that Section 30-22-3 “requires a person to furnish identifying
information immediately upon request . . . ,” and rejected the defendant’s Fourth Amendment arguments. Id. at 424.
7a
detained and further questioned and investigated” for up
to two hours.)
Utah
Utah Code Ann. § 77-7-15 (providing that a police
officer “may demand” a Terry suspect’s “name, address and
an explanation of his actions.”)
Vermont
Vt. Stat. Ann. tit. 24, § 1983 (providing that a law
enforcement may detain a person if “(1) the officer has
reasonable grounds to believe the person has violated a
municipal ordinance; and (2) the person refuses to identify
himself . . . satisfactorily to the officer when requested by
the officer,” and adding that: “If the officer is unable to
obtain the identification information, the person shall
forthwith be brought before a district court judge for that
purpose. A person who refuses to identify himself . . . to
the court on request shall immediately and without service
of an order on the person be subject to civil contempt
proceedings. . . . ”)
Virgin Islands
14 V.I. Code Ann. § 1191(1) (providing for up to a
$5,000 fine and 90 days imprisonment for one who “loiters,
remains or wanders in or about a public place without
apparent reason and under circumstances which reasonably justify suspicion that he may be engaged in or about to
engage in crime, and, upon inquiring by a police officer,
refuses to identify himself or fails to give a reasonably
credible account of his conduct and purposes.”)
8a
Virginia: Arlington County
Arlington County (Va.) Code § 17-13 (providing that it
“shall be unlawful for any person at a public place or place
open to the public to refuse to identify himself by name
and address at the request of a . . . police officer . . . , if the
surrounding circumstances are such as to indicate to a
reasonable man that the public safety requires such
identification.”)
Wisconsin
Wis. Stat. Ann. § 968.24 (providing that a police officer
“may demand” a Terry suspect’s “name, address and an
explanation of [his] conduct.”)